State of New South Wales (Western Sydney Local Health District) v Wright
[2022] NSWPICMP 443
•7 November 2022
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | State of New South Wales (Western Sydney Local Health District) v Wright [2022] NSWPICMP 443 |
| APPELLANT: | State of New South Wales (Western Sydney Local Health District) |
| RESPONDENT: | Paul Wright |
| Appeal Panel | |
| MEMBER: | Marshal Douglas |
| MEDICAL ASSESSOR: | Nicholas Glozier |
| MEDICAL ASSESSOR: | Douglas Andrews |
| DATE OF DECISION: | 7 November 2022 |
| CATCHWORDS: | wORKERS cOMPENSATION - Respondent worker referred for assessment of whole person impairment (WPI) from psychiatric injury deemed to have happened on 5 December 2018; in earlier proceedings consent award made in favour of appellant for “additional injury alleged”; particularised as being aggravation and exacerbation of a psychological condition from workplace interactions after 5 December 2018; appellant submitted Medical Assessor’s (MA) assessment of respondent’s WPI included impairment related to events that occurred after 5 December 2018; Panel did not accept appellant’s submissions; Panel discussed as a hypothetical that even if MA did assess impairment due to events after 5 December 2018 then based on common law principles of causation any such impairment would be attributable to 5 December 2018 injury; Held – Medical Assessment Certificate upheld. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 13 September 2022 the State of New South Wales (Western Sydney Local District), the appellant, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Michael Hong, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 16 August 2022.
The medical dispute that the President of the Personal Injury Commission (Commission), through his delegate, referred to the Medical Assessor to assess related to the degree of permanent impairment Paul Wright, the respondent, had from a psychiatric injury he suffered due to events that occurred in his employment with the appellant over the period
20 August 2012 to 5 December 2018. The medical dispute was described in the referral in these terms:“MEDICAL DISPUTE REFERRED FOR ASSESSMENT (s319 WIM Act)
the degree of permanent impairment of the worker as a result of an injury
(s319(c))
whether any proportion of permanent impairment is due to any previous injury
or pre-existing condition or abnormality, and the extent of that proportion
(s319(d))
whether impairment is permanent (s319(f))
whether the degree of permanent impairment of the injured worker is fully
ascertainable (s319(g))
Date of Injury: 5 December 2022 (sic: 5 December 2018)- deemed (for the period 20/8/12 to 5/12/2018
Body part/s referred: Psychiatric/psychological disorder
Method of assessment: Whole Person Impairment”
Medical Assessor Hong certified in the MAC that the respondent had 19% whole person impairment (WPI) from his injury.
The appellant’s appeal is based on the ground for appeal provided in s 327(3)(d) of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act), being that the MAC contains a demonstrable error.
Another delegate of the President was satisfied that, on the face of the appellant’s application, at least one ground for appeal has been made out.
The Appeal Panel has the conducted a review of the original medical assessment but limited to the ground for appeal on which the appeal is made.
The WorkCover Medical Assessment Guidelines 2006 set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with the WorkCover Medical Assessment Guidelines 2006.
The assessment of permanent impairment is conducted in accordance with the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 April 2016 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5).
RELEVANT FACTUAL BACKGROUND
The respondent commenced employment with the appellant as a courier driver in
August 2012, working at the Westmead Hospital. Due to several interactions he had in his employment with a particular manager he suffered a psychiatric injury. Following a particular incident on 5 December 2018 he ceased work, returning on 11 February 2019 but working reduced hours. In a statement he signed on 9 July 2019, he said his difficulties with his manager continued after he returned to work. Shortly after that, he ceased work and has not worked since.The key issue in this appeal is whether Medical Assessor Hong included in his assessment of the respondent’s WPI resulting from the respondent’s compensable injury that the parties agree was deemed to have happened on 5 December 2018, any impairment resulting from what occurred in the respondent’s employment after he returned to work on
11 February 2019 and if so whether the Medical Assessor erred by doing so.Relevant to that issue is that the respondent commenced prior proceedings in the Commission, which bore matter number 5068/20. The Application to Resolve a Dispute that the respondent filed to initiate those proceedings and the appellant’s Reply to his application, are not before the Appeal Panel, but based on the material that is before the Appeal Panel, it would seem that in those earlier proceedings, the respondent sought determination of claims he made against the appellant for weekly payments of compensation for an incapacity for work resulting from his injury and for payment of compensation for medical expenses he had incurred for treatment of his injury. The Workers Compensation Commission issued a Certificate of Determination recording orders and notations that Arbitrator Michael Perry made with the consent of the parties to finalise those proceedings that, importantly, included the following:
“1. Amended ARD as follows: under the heading Injury Details by deleting the date of injury appearing there and replacing it with 5/12/18, and placing a tick in the box for “deemed”, and adding the following to the words appearing after injury description/cause of injury:
In addition, in the course of employment subsequent to 5 December 2018, as a result of the applicant’s interactions with his supervisors, fellow employees and officers of the defendant, and as a result of his perceptions that his employment was at risk and that he was being bullied, he suffered further aggravation and exacerbation of a psychological condition (“the additional injury”).
……
5. Award for the respondent in respect of the additional injury alleged and specified in
Order 1 above.
6. Award for the respondent in respect of any allegation of frank injury, that is injury as
defined in section 4(a) of the 1987 Act.”
(Italics as per original)
On 20 May 2021 the respondent’s solicitors wrote to the appellant’s insurer advising it that the respondent was claiming compensation under s 66 of the Workers Compensation Act1987 (the 1987 Act) of $48,670 for 19% permanent impairment from his injury. The respondent’s solicitors enclosed with their letter a copy of a permanent impairment claim form the respondent had signed on 18 May 2021 in which the body system affected by his injury was specified as being “psychological” and in which the date of injury was specified as being “5 December 2018”. The respondent’s solicitors also enclosed with their letter a copy of a report of psychiatrist Associate Professor Michael RobertsonRobertson dated 3 May 2021, on whose report the respondent relied to support his claim and who had assessed the respondent had 19% WPI.
The Appeal Panel observes that in that report Associate Professor RobertsonRobertson advised that he had diagnosed the respondent had chronic major depressive disorder. Associate Professor Robertson indicated in his report that the circumstances from which that arose were as follows:
“Mr Wright is a 56-year-man who presents with a chronic adjustment disorder with
anxiety and depressed mood. Mr Wright describes a history of persisting reactive
psychiatric symptoms that occurred in the context of a problematic relationship with
his line manager and other co-workers who ‘mobbed’ him and established an
exclusionary alliance. He had been treated for anxiety symptoms since 2016 and he
was prescribed fluoxetine by his general practitioner. His symptoms intensified when
he returned to workplace and essentially the same circumstances in which his injury
emerged.”
The appellant’s solicitor arranged for the respondent to be examined by consultant psychiatrist Dr Clayton Smith on 12 July 2021 and in a report of that date to the appellant’s solicitor Dr Smith advised that he had assessed the respondent had 9% WPI from the respondent’s injury which he also diagnosed was a major depressive disorder.
The appellant’s solicitor had asked Dr Smith to advise it on the following issue:
“Your diagnosis of any psychiatric conditions that developed subsequent to the
incidents leading up to 5 December 2018. That is, from 6 December 2018
onwards. In the alternative, do you consider that the worker’s psychological
injury sustained due to the incidents leading up to 5 December 2018 was
aggravated as a result of any later incidents throughout 2019?”
In response to that Dr Smith advised that the respondent’s “psychological injury was aggravated by the events in 2019”.
On 8 September 2021 the insurer wrote to the respondent, care of his solicitors, notifying him under s 78 of the 1998 Act that it disputed he was entitled to “permanent impairment lump sum compensation”. It advised him that it accepted he had a psychological injury occurring on 5 December 2018. It advised him that his “employer holds an award in respect of any subsequent aggravation/exacerbation of your psychiatric injury subsequent to 5 December 2018”. It advised him that Dr Clayton Smith, whom the Appeal Panel observes is a consultant psychiatrist, had assessed the respondent had 9% WPI. It advised him that it preferred the opinion of Dr Smith and hence it disputed he had at least 15% WPI from his injury, which by virtue of s 65A(3) of the 1987 Act his permanent impairment needed to exceed in order for him to be entitled to compensation under s 66. It advised him that it disputed “liability for any portion of the impairment that relates to the aggravation/exacerbation of your psychological injury that occurred subsequent to
5 December 2018”. It said that Associate Professor Robertson “did not take this into account in his assessment” and that consequently Associate Professor Robertson’s “assessment is not a true representation of your permanent impairment arising as a result of your injury on 5 December 2018”.Further correspondence was exchanged between the respondent solicitors and the insurer, in which the respondent’s solicitors requested the insurer to review its decision denying liability for his claim for compensation under s 66 and in which the insurer confirmed its prior decision. Ultimately, the respondent commenced the proceedings presently before the Commission seeking determination of his claim for compensation under s 66 of the 1987 Act. As mentioned above, a delegate of the President referred the medical dispute to Medical Assessor Hong to assess and Medical Assessor Hong issued the MAC certifying the respondent had 19% WPI from his injury.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the WorkCover Medical Assessment Guidelines 2006.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the respondent to undergo a further medical examination. This is because, for reasons explained below, the Appeal Panel considered the MAC did not contain a demonstrable error. Consequently, the Appeal Panel would not be revoking the MAC and re-assessing the medical dispute.
EVIDENCE
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
MEDICAL ASSESSMENT CERTIFICATE
Medical Assessor Hong noted within the MAC under the heading “worker’s details including” that the date of the respondent’s injury that had been referred for assessment was “5 December 2018 – deemed ‘for the period 20 August to 5 December 2018’”.
Medical Assessor Hong recorded in the MAC in the following terms the history he obtained regarding the respondent’s injury:
“The issue at work predominantly related to Mr Wright's manager. He has known her personally because they belonged to the same rugby club. He explained that he used to play and coached in the club, and had been a member for about 20 years. He does not understand why she would pick on him, and described that he was subject to mobbing behaviour, excluded by people because of her, and also repeated passive aggressive behaviour.
He reported that he became sick of the constant harassment and had thought about making a complaint in 2015, but then said that it was against his moral belief to do it, especially as they were both belonged to the same football club.
The most significant incident happened in December 2018 and that was when
Mr Wright first stopped working. He received treatment and returned to work, but then psychologically deteriorated. He explained there were further problems when he went back to work.He recalled there were changes being made at work, and the drivers were being transferred to Liverpool and he was looking forward to it because it meant he would not be reporting to the same manager. Suddenly management called him and said that his job was gone, he needed to apply for the Liverpool position but the application closed the next Monday. He then discovered that all the other drivers knew they needed to apply in advance, and that again he was the only person being singled out.
Mr Wright had two psychiatric admissions, both in early 2020 in St John of God Hospital. He has also been attending a day program in SJOG hospital in the last two years, usually once a week. The program finished about four weeks ago.
He said the return-to-work coordinator advised him he should change department to get away from the manager, he just needed to have a psychiatrist report in support. However, even though he did all that was required, a return to work never happened. He said he was stood down and was told there was no job available for him anymore.”
The Medical Assessor noted beneath a subheading “subsequent psychological injury” that the respondent’s father passed in December 2020 but that did not produce a psychological injury. The Medical Assessor also noted under a subheading “background history” the following:
“Mr Wright had been working at Westmead Hospital as a full-time courier and started in 2012. After his injury, he tried to go back to work around April 2019, three hours a day, three days a week. He said it lasted about six weeks. He recalled he had a meeting with a higher manager before returning to work and was told that he would not be reporting to the same manager who bullied him, that he would report to another worker and the higher manager. However, when he started work, the higher manager did not turn up and the other worker did not know anything about the arrangement. The manager who bullied him returned to work, and he said that she continued to bully him through the other workers, for example they claimed he has not done the mandatory training online module. He explained to them that he did it, but later discovered that he needed 95% to pass, so even though he did the module he did not pass it. He said there was still ongoing problem. She was still harassing him through other people, and eventually he had to stop work.”
Under the heading “summary” in the MAC the Medical Assessor provided the following summary of the respondent’s injury:
“Mr Wright described having developed persisting anxiety and depression, as a result of his employment and interaction with his manager. He described difficulties in returning to work. Since he ceased work with Westmead Hospital, he has not been able to attempt other employment and described chronic functional impairment. Overall, my view is that he developed a Major depressive disorder and his impairment has stabilized.”
Medical Assessor Hong summarised within part 10.c of the MAC key parts of the evidence including a summary of several statements the respondent had signed and also the reports of Associate Professor Robertson and Dr Smith.
SUBMISSIONS
Both parties made written submissions. They are not repeated in full, but have been considered by the Appeal Panel.
In summary, the appellant submitted that the Medical Assessor failed to consider that it “held an award in respect of any allegation of injury subsequent to 5 December 2018”. The appellant submitted that the Medical Assessor’s failure to consider that caused the Medical Assessor to assess incorrectly the respondent’s permanent impairment arising from the respondent’s injury on 5 December 2018.
The appellant submitted that the Certificate of Determination the Workers Compensation Commission issued recording the determination that was made with the consent of the parties on 6 November 2020 “specifically outlines that there is an alleged psychological injury occurring as a result of work place events subsequent to 5 December 2018 for which there is an award for the appellant”. The appellant submitted that there was an agreement between the parties that that injury was not compensable.
The appellant noted that the history the Medical Assessor obtained included the event that took place in 2019 in which management called the respondent and told him his job was gone and that he needed to apply for a position at Liverpool.
The appellant submitted that the Medical Assessor’s assessment was limited to the respondent’s permanent impairment as a result of the psychological injury on
5 December 2018 and “it was not open to the Medical Assessor to infer that these later events were causative nor contributory to the worker’s psychological injury on 5 December 2018 or that they amounted to a new ‘injury’”. The appellant submitted that the Medical Assessor wrongly attributed impairment that resulted from “the non-compensable injury” to the respondent’s injury on 5 December 2018.The appellant referred to Secretary,New South Wales Department of Education v Johnson[1] and Ozcan v MacArthur Disability Services Ltd[2]. The appellant submitted that the respondent’s case can be differentiated from Johnson and Ozcan in that there was an award in favour of the respondent in this matter for “the additional injury”. The appellant submitted that “there were two distinct injuries” and that the Medical Assessor should have turned his mind to the question of causation when determining the extent of the respondent’s permanent impairment that was “caused by or is attributable” to the injury on
5 December 2018.[1] [2019] NSWCA 321 (Johnson).
[2] [2021] NSWCA 56 (Ozcan).
The appellant submitted that there was no connection between the injury on
5 December 2018 and the additional injury and that any impairment the respondent suffered from the additional injury should have been assessed separately from the injury on
5 December 2018. The appellant submitted that the respondent’s injury on
5 December 2018 and his “additional injury” cannot be considered to be the same incident and consequently the impairment the respondent has from each injury cannot be aggregated under s 65(2) of the 1987 Act or s 322(3) of the 1998 Act.In reply, the respondent submitted that the Medical Assessor did not characterise that whatever had occurred after 5 December 2018 constituted a new injury. The respondent submitted that the Medical Assessor carefully considered the onset and cause of his injury and the Medical Assessor accepted “the genesis of the injury as being on or before 5 December 2018 and including 5 December 2018”. The respondent submitted that “the appellant has been unable to highlight where the Medical Assessor erred by incorporating events after 5 December 2018”.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case.
The Appeal Panel considers that Medical Assessor Hong has correctly assessed the respondent’s permanent impairment resulting from the injury the respondent suffered from the events to which he was subject in his employment with the appellant prior to
5 December 2018, which injury was deemed, in accordance with s 15 of the 1987 Act, to have occurred on 5 December 2018. Indeed, by virtue of Orders 1 and 5 made in the earlier proceedings in the Workers Compensation Commission, neither party can contend that the respondent suffered what is therein described as “the additional injury”.A consent order can create a res judicata estoppel or an issue estoppel[3]. The estoppel relates only to the extent of what was necessarily decided or with respect to consent agreements what was necessarily agreed. What was necessarily agreed must be construed by reference to what a reasonable person would understand by the language the parties have used in the consent orders.[4]
[3] Somander v Minister for Immigration, Multicultural & Indigenous Affairs [2000] FCA 1193 at 686; Seiab v Hayes Personnel Services (Aust) Pty Ltd [2008] NSWWCCPD 36; Bouchmouni v Bakhos Matta t/a Western Red Services [2013] NSWWCCPD 4 at [33] (Bouchmouni); Spencer Bower, Turner and Handley, the doctrine res judicata (4th Ed 2009) Lexis Nexis at (38).
[4] Bouchmouni [47(c)].
Other than what is contained within the Certificate of Determination issued in the prior proceedings in the Workers Compensation Commission there is really no material before the Appeal Panel that assists the Appeal Panel to interpret objectively what the parties meant with respect to the term “additional injury” used in the award Arbitrator Perry made in favour of the respondent in those prior proceedings. It seems to the Appeal Panel that based on that Certificate of Determination, when considered objectively, what was agreed by the parties was either one of two things. Either it was that the circumstances the respondent had alleged to have occurred in his workplace after 5 December 2018 did not occur or otherwise those circumstances did occur but they did not give rise to any injury separate to what the respondent suffered on 5 December 2018. It seems to the Appeal Panel, given there was an award for the appellant with respect to the “additional injury alleged” (Appeal Panel’s emphasis), and not an award with respect to any claim for compensation to which the respondent might have been entitled as a consequence of an incapacity for work from or treatment received for any such alleged injury, that the parties agreed there was no such injury. In other words, the award related to the allegations the respondent had made with respect to the injury, which relates to either the circumstances from which he alleged such an injury occurred or the occurrence of an illness from such circumstances.
The Medical Assessor assessed the respondent’s psychiatric impairment based on how the respondent presented at the time the Medical Assessor examined the respondent. The Medical Assessor noted that the psychiatric impairment he assessed the respondent to have was not due to any pre-existing condition and was not due to the respondent’s reaction to the death of his father in December 2020. The Medical Assessor noted in the MAC at 8.g that the respondent had not suffered any further injury from that which the Medical Assessor was assessing, being the injury specified in the MAC as “5 December 2018 – deemed (for the period 20 August 2012 to 5 December 2018)”.
In arguendo, if the estoppel arising from the consent award in the prior proceedings did not relate to the alleged occurrence of events subsequent to 5 December 2018 or to an alleged injury resulting from those subsequent events, but related to incapacity from an “additional injury” and the need for medical treatment resulting from an “additional injury” or whether an “additional injury” from such events was wholly or predominantly caused by reasonable action taken by the respondent with respect to the matters specified in s 11A of the 1987 Act, in other words the respondent can contend in these proceedings that there was a subsequent “additional injury”, then necessarily that “additional injury” did not arise from the same incidents as the incidents from which the injury on 5 December 2018 occurred. In such circumstance, and again this is a hypothetical given what the Appeal Panel has said about the estoppel that did arise from the prior award, s 65(2) of the 1987 Act and s 323(3) of the 1998 Act could not be engaged. However, in such a circumstance, the authority of Johnson and Ozcan would apply such that the Medical Assessor would have been required to apply common law principles of causation to determine the degree of permanent impairment the respondent had from his injury of 5 December 2018. The situation would have been, in such circumstance, that the respondent’s condition as a result of his injury on 5 December 2018 was worsened by the “additional injury” and that no part of the worsening of the respondent’s condition would have been occasioned if the injury of 5 December 2018 had not occurred. In other words, the worsening of the respondent’s symptoms and function consequent to what occurred after 5 December 2018 was causally connected to the injury the respondent suffered on 5 December 2018.
Moreover, it is trite that an impairment of a worker can have multiple causes.[5] If the estoppel arising from the consent award in the prior proceedings did not relate to the occurrence of events as alleged by the respondent subsequent to 5 December 2018 or to an alleged injury due to those events, then the situation would be that both injuries, that is the injury of
5 December 2018 and the “additional injury”, would have materially contributed to the respondent’s impairment, with the predominant contributor, in the Appeal Panel’s view, having been the injury of 5 December 2018. In such a hypothetical scenario, the Medical Assessor would have been right to attribute the respondent’s 19% WPI from the5 December 2018 injury.[5] Calman v Commissioner of Police [1999] HCA 60 at [38]-[40]; ACQ Pty Ltd v Cooke [2009] HCA 28 at [25].
In short, the Appeal Panel considers that the Medical Assessor has not made an error with respect to his assessment of the respondent’s permanent impairment from his injury on
5 December 2018. The Medical Assessor has assessed the medical dispute that was referred to him for assessment, being the respondent’s permanent impairment from the injury of 5 December 2012. But whichever way the matter is analysed, that is if there was “an additional injury” or if subsequent events contributed to the respondent’s impairment, the result would be the same.For these reasons, the Appeal Panel has determined that the MAC issued on
16 August 2022 should be confirmed.
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